Our Goal is Federalism, not “States’ Rights”

Are the members of the 10th Amendment efforts supporting federalism or states’ rights? Should we link ourselves to John C. Calhoun and the notion of secessionism and abolishment or to restoration and original meaning as intended during the formation of our country? Do we deny the power of the federal government or simply stand against federal usurpation beyond their supreme authority under the U.S. Constitution? Is it our goal to require states to resume their power and authority afforded them in the protection of people’s rights to life, liberty, and property or to merely resist law and threaten to walk away if we are not given our way?

Last year a group of concerned citizens gathered to form a core group focused on state sovereignty under the 10th Amendment. Among the many agenda items was the naming of the group. Most were moved to create a name that included states’ rights. Initially my stance was against the name, historically states’ rights does not have the longevity or overall meaning encompassing our founders’ debate over the concept of federalism.

Most in the group were emotionally engaged by using the term states’ rights and I rationalized a compromise early would allow opportunity for clarification as we moved forward. It was an error on my part and it is time to correct the error as the enemies of the 10th Amendment too easily misdirect our debate away from federalism and into areas such as secession and racism.

Foundationally, states don’t have rights as a government, states have power. Power at the federal and state level is derived from the consent of the governed, the people, who do have rights our governing agreements were designed to protect. Inspired by careful historical study, years of debate, considerations, and the declarations of colonies, towns, and associations (prior to July of 1776) the fundamental rights of the people were articulated in the preamble of our Declaration of Independence.

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness – That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. (Emphasis added)

These words guided the early efforts in developing state constitutions and the Articles of Confederation. During the war and the years following its end many colonists realized the Articles of Confederation were inadequate or destructive to the ends of protecting the people under the general government. The initial confederation was simply not strong enough, though many would applaud that as a strength, due to the fear a strong federal government would eventually usurp the self-governing right of the people under their state constitutions (social compacts) subverting states’ power.

The Montesquieu concept of federalism, rejected when John Adams proposed it as a federal structure in 1776, was gaining favor as the states, under the Articles of Confederation, were moving toward a destructive end. Massachusetts’s constitution was framed under the concept and was a solid example of success. With an eye toward altering the federal agreement initially, the Constitutional Convention ( held in 1787) closed its doors so honest, heated debate could allow those assembled unfettered consideration of plans calling for the abolishing of the Articles and the creation of a new federal constitution aimed at delivering better safety and happiness for the people in all states.

Federalism was at the heart of these debates. When they concluded there were many learned, patriotic members who were convinced the constitution, sent to the states for ratifying debates and votes, went too far even if the original agreement did not go far enough.

If the great fear and prediction of these men – that the general government would entirely subvert the state governments, with a consequent loss of personal freedom – has not been realized, it will nevertheless be seen in the following pages that many of their objections were embodied in the future amendments, and the disregard of others has occasioned some of our most serious national questions. (Paul Leicester Ford, Pamphlets on the Constitution of the United States, 1888, p. vii) (Emphasis added)

Supporting the stronger approach for a general government were Hamilton, Madison, Washington, Franklin, John Jay, and other respected patriots. Opposing the stronger approach, out of fear federalism would be lost to nationalism, were Elbridge Gerry, George Mason, Patrick Henry, and still more whose names have been lost to our modern knowledge yet men highly respected in these formative times.

Writing under the title of “An American Citizen” Tench Coxe produced four letters which were among the first to be published in support of the constitution. His letters were aimed at citizens of Philadelphia with the same purpose as the better known Federalist Papers aimed at the citizens of New York during the time the U.S. Constitution had been submitted to each state for consideration. He was a member of the Annapolis Convention as well as the Continental Congress, and had written several pamphlets focused on the finance and commerce of the United States. He believed bicameral protection would guard against the usurpation of states’ powers. Speaking of senators he wrote;

They will also feel a considerable check from the constitutional powers of the state legislatures, whose rights they will not be disposed to infringe, since they are the bodies to which they owe their existence, and are moreover to remain the immediate guardians of the people. (Letter Number II, On the safety of the people, from the restraints imposed upon the Senate, Sep. 17, 1787, Quoted from Paul Ford, Pamphlets on the Constitution of the United States, 1888, p.140) (Emphasis added)

Here Mr. Coxe mentions the rights of states yet his main focus is on the constitutional powers reserved to the states under the proposed federal constitution. In referencing ‘whose rights’ it is likely the rights of citizens within the state he was considering as this was the common thought of the times, people have rights while government has power, whether discussing federal or state government. His comments surrounding a call for a bill of rights were focused on his (and others) belief a federal level bill of rights was unnecessary and would create confusions of power since state constitutions were designed for the daily protection of the inalienable rights of life, liberty, and property. Listen to the explanation of this guardianship through proper implementation of the concept of separation of powers combined with checks and balances (part of the Montesquieu concept referenced above);

Besides the securities for the liberties of the people arising out of the federal government, they are guarded by their state constitutions, and by the nature of things in the separate states. The Governor or President in each commonwealth, the Councils, Senates, Assemblies, Judges, Sheriffs, Grand and Petit Juries, Officers of Militia…and many other officers of power and influence, will still be chosen within each state, without any possible interference of the federal government. The separate states will also choose all the members of the legislative and executive branches of the United States…Whether a majority of the Senate, each of whom will be chosen by the legislature of a free, sovereign and independent state, without any stipulation in favour of wealth or the contemptible distinctions of birth or rank, and who will be closely observed by the state legislatures, can destroy our liberties, controuled (sic) as they are too by the house of representatives? or whether a temporary, limited, executive officer, watched by the federal Representatives, by the Senate, by the state legislatures, by his personal enemies among the people of his own state, by the jealousy of the people of rival states, and by the whole of the people of the Union, can ever endanger our Freedom. (Ibid, p. 152-153)(Emphasis added)

Discussing the securities for people’s liberties was of fundamental meaning. The reason societies enter social compacts is for the unified protection of people’s rights against other societies that eye those rights as their own. We would not constitutionally align with each other if we were all of the virtuous nature of never interfering with one another’s life, liberty, and property. We would live, commercially interact, and socialize in the security of freedom without government. Yet we know this is not the nature of humanity. Since it is not in our nature to live as angels we must suffer to attempt governing with the least impact on our daily lives, at least that was the initial goals of our founders under the U.S. Constitution when it came to the federal or general government and its interaction with the states.

We the People of the United States,

1. in Order to form a more perfect Union,
2. establish Justice,
3. insure domestic Tranquility,
4. provide for the common defence,
5. promote the general Welfare,
6. and secure the Blessings of Liberty to ourselves and our Posterity,

do ordain and establish this Constitution for the United States of America. (Preamble)

Opponents felt even with the safeguards Coxe saw so clearly there were too many ways the devilish side of mankind could still interfere by usurping power and subjugating states and people. Factional interference was a key concern (which we see today at the root of the breakdown in the checks and balance system initially implemented) despite the Bill of Rights opponents fought to have included. It is interesting the historical debate over federalism led, in fact, to the first two major parties (another word for faction or special interest group) and the process of elections was altered early on with the ratification of the 12th Amendment.

One opponent, George Mason, was standing against the constitution at the risk of losing his long standing friendship with many including his neighbor, George Washington. Washington and Mason worked closely in organizing the non-importation efforts during the resistance to the Townshend Acts in the 1760s, were instrumental in writing the Virginia Declaration of Rights in the 1770s, and now in the late 1780s their friendship would be strained over Mason’s insistence without a bill of rights and stronger efforts to end slavery Virginia should not ratify the proposed document. It was his pen that is credited with much of the content of Bill of Rights based largely on his Virginia Declaration of Rights, which he is given large credit for in addition to credit for much of the Constitution of Virginia. On October 7th, 1787 he sent a letter to Washington outlining his objections as he stated, “You will readily observe, that my objections are not numerous…though in my mind some of them are capital ones.” Nor could Richard Henry Lee who felt the general government controlled too much power of the purse and sword to effectively protect the state powers and citizen rights from federal usurpation.

The debate over federalism would be calmed during the first meeting of the new Congress of the United States where James Madison led an effort to review over 200 proposed amendments, forwarded 12 amendments to the states for ratification, and eventually secured 10 new amendments known as the Bill of Rights. Key to the overall success of these 10 amendments were the final two. These were considered by Thomas Jefferson and others to be the very foundation for future success of the union formed under the U.S. Constitution. These foundational amendments are;

Article the eleventh [Amendment IX]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article the twelfth [Amendment X]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

As the new country began to operate under the guidelines set forth many challenges would occur keeping the debate of federalism alive. The Aliens and Sedition Acts would lead to the Virginia and Kentucky Resolutions creating what is known today as the Principles of ’98. Jefferson’s embargo of 1807 to 1809 led New England states to band together and when the federal courts declared the embargo constitutional the Massachusetts assembly challenge the ruling. The War of 1812 would cause Connecticut and Massachusetts to refuse to send their militias as they believed the federal government acted unconstitutionally despite all three federal branches claiming their actions were constitutional.

So went the struggles of power between the federal and state governments with the inherent strength of checks and balances and the separation of powers.

According to Professor Eugene Hickok, the idea of states’ rights came much later, during the Nullification Crisis. Centered around the crisis was the issue of slavery and the improper treatment of South Carolina and other southern states at the hands of merchant concerns of the northern states. John Calhoun resigned the Vice-Presidency of the United States over a dispute with President Andrew Jackson.

The dispute centered on tariffs in amounts up to 50% on European goods. Calhoun worked on the “South Carolina Exposition and Protest” secretly while serving under John Q. Adams as vice-president. The resolution focused on the protest of South Carolina yet never passed as the assembly chose to wait for the new president, Jackson, to take office since they believed he would remove the tariffs. Hickok writes, “[b]ut it was widely distributed and read and became the conceptual and philosophical basis for the idea of nullification and “states’ rights” in the years leading up to the Civil War.” (Why States? The Challenge of Federalism, 2007, p. 44)

It is from this beginning history of state’s rights our opponents to federalism, state’s powers, and the duty of all those taking an oath to uphold our constitution like to point to. The effort is to easily paint those supporting our 10th Amendment as people who merely want to return to the days of slavery, separation, elitism, and turmoil. This is, in part, the fault of those of us involved in today’s efforts. We too easily use the label of states’ rights in defining our efforts when federalism or states’ power is more accurate and harder for our opponents to attack in an easy manner with history to back up their claims.

Members of the 10th Amendment effort support federalism. We must understand states’ don’t have rights but an obligation to use their governing power to defend their citizens’ rights whenever federal power oversteps its enumerated obligations. We are not secessionist, nor are we abolitionists but rather restorationists devoted to our original meaning and the foundational strength of the 9th and 10th Amendments combined with an acceptance of personal responsibility.

We honor the federal laws as supreme laws of the land when they are pursuant to, and in keeping with, the U.S. Constitution while we oppose all efforts for federal laws and mandates beyond their granted powers no matter what moral clothing they are dressed in. Unconstitutional law, even if clothed in good intention, is still bad law and the states are obligated to check it, and declare it as such. If an unconstitutional law is so universally good as to benefit the general welfare of all citizens in all states let the processes of Article V be invoked. Until such time we stand by the duty of states’ powers to protect us for many unconstitutional laws and mandates that began with good intentions have crippled our economy and usurped authority far beyond original meaning.

Let every member of every organization supporting state sovereignty and federalism cleanse the language so our opponents cannot easily attack the wrong target. Should they target federalism and the original meaning we can defeat them with truth. Freedom is not outdated, federal government is an agreement among the people of different sovereign states, the 10th Amendment has never been repealed, and virtue is still necessary for securing our posterity’s future rights to life, liberty, and the pursuit of happiness.

Gary Wood is the State Chapter Coordinator for the Utah Tenth Amendment Center. He works with the Utah 912 States’ Rights Coalition and Hosts March of Liberty Radio every Saturday and Sunday evening at 7pm EST on Blog Talk Radio. He is a lifetime member of the VFW among other groups but more important to him is his title of grandpa. “According to Thomas Jefferson the 10th Amendment is keystone to our Constitution. We must restore the keystone so we can secure the blessings of liberty for our posterity, a goal of our Founders and a goal we must still strive to achieve.”

Someone else wrote "every issue, every time" to convey that we should just follow the design of the Constitution regardless where it leads us. If we don't like the result, we must amend the Constitution pursuant to the amendment provisions found therein (Article V).

If you don't understand the design and you pontificate on how the law should be, you're just telling us what your personal philosophy of government is and, frankly, that's not relevant. If we're wise, we don't want a "nation of men." Smart people understand the value of a written set of rules that everyone obeys, including how to amend the rules. So, your personal opinion or my personal opinion on any given issue is irrelevant in interpreting the Constitution.

Read the Declaration and US Constitution carefully, honestly and openly (it doesn't take that long) and you'll quickly see that the people are the source of all rights which are 'sacrificed' to a governing body for 'the greater good' as defined in the writings. At that point, the governing body has certain 'powers' that result from the consensual sacrifice of certain, specified human rights.

So, governments have power only because people give it to them. America's design is that the people are supreme and next come the States and, in last place, is the federal government that gets as little as possible in order to accomplish the written goals. Hence, the term 'federalism.'

How much power any State has is determined by the people in that State (and by any specific limits in the US Constitution such as treaties, coining money, bankruptcy laws, etc.)

This has certain ramifications that some people, even those on this site, might not, at first blush, like.

For example, the federal government can't enact gun control laws under the Constitution because they are not authorized to do so anywhere in the document. Also, in case you didn't get that last point, the 2nd amendment specifically makes this point. The US Constitution and the 2nd amendment in this regard apply against the feds – not the States.

Further, nothing in the US Constitution specifically prohibits the States from enacting gun laws.

So, the 2nd amendment doesn't mean the States might not have the power to regulate guns. In order to make that determination, you'll have to look at a given State's constitution to see if the people in that State gave up their natural rights to self defense. If so, the State can act in accordance with whatever the State constitution says. If the people didn't specifically give up their gun rights (most specifically say they did NOT give them up), then the State is also powerless in this area.

The 14th amendment doesn't change that outcome since it deals with the general concept of "privileges and immunities" and not the specific 'rights' under the BoR. That's a slightly more complicated analysis because of the slavery issue and the War Between the States, etc. and there isn't room here for it but it needs to be addressed at some point.

So, to be consistent on following the "every issue, every time" idea, we need to accept that gun control is a State issue and start to be more conversant with our State's constitution.

The current case before the US Supreme Court that seeks to extend the 2nd amendment to the States via the 14th amendment is a very bad idea. It gives too much power to the feds. That was NOT the original design. Gun control is up to the States – not the feds!

Someone else wrote "every issue, every time" to convey that we should just follow the design of the Constitution regardless where it leads us. If we don't like the result, we must amend the Constitution pursuant to the amendment provisions found therein (Article V).

If you don't understand the design and you pontificate on how the law should be, you're just telling us what your personal philosophy of government is and, frankly, that's not relevant. If we're wise, we don't want a "nation of men." Smart people understand the value of a written set of rules that everyone obeys, including how to amend the rules. So, your personal opinion or my personal opinion on any given issue is irrelevant in interpreting the Constitution.

Read the Declaration and US Constitution carefully, honestly and openly (it doesn't take that long) and you'll quickly see that the people are the source of all rights which are 'sacrificed' to a governing body for 'the greater good' as defined in the writings. At that point, the governing body has certain 'powers' that result from the consensual sacrifice of certain, specified human rights.

So, governments have power only because people give it to them. America's design is that the people are supreme and next come the States and, in last place, is the federal government that gets as little as possible in order to accomplish the written goals. Hence, the term 'federalism.'

How much power any State has is determined by the people in that State (and by any specific limits in the US Constitution such as treaties, coining money, bankruptcy laws, etc.)

This has certain ramifications that some people, even those on this site, might not, at first blush, like.

For example, the federal government can't enact gun control laws under the Constitution because they are not authorized to do so anywhere in the document. Also, in case you didn't get that last point, the 2nd amendment specifically makes this point. The US Constitution and the 2nd amendment in this regard apply against the feds – not the States.

Further, nothing in the US Constitution specifically prohibits the States from enacting gun laws.

So, the 2nd amendment doesn't mean the States might not have the power to regulate guns. In order to make that determination, you'll have to look at a given State's constitution to see if the people in that State gave up their natural rights to self defense. If so, the State can act in accordance with whatever the State constitution says. If the people didn't specifically give up their gun rights (most specifically say they did NOT give them up), then the State is also powerless in this area.

The 14th amendment doesn't change that outcome since it deals with the general concept of "privileges and immunities" and not the specific 'rights' under the BoR. That's a slightly more complicated analysis because of the slavery issue and the War Between the States, etc. and there isn't room here for it but it needs to be addressed at some point.

So, to be consistent on following the "every issue, every time" idea, we need to accept that gun control is a State issue and start to be more conversant with our State's constitution.

The current case before the US Supreme Court that seeks to extend the 2nd amendment to the States via the 14th amendment is a very bad idea. It gives too much power to the feds. That was NOT the original design. Gun control is up to the States – not the feds!

That IS the modern interpretation by the supreme court and the federal government. But, it is NOT what the founders designed, and there is no history from the founding to back that up.

We find that gun rights advocates get many things right about that liberty, but they go to the wrong place to fix it – the monstrosity known as the federal government. That will only result in less rights for everyone, in my opinion.

If you haven't heard it yet, you'll want to check out my podcast with Kevin Gutzman on the subject – find a link to it in the top navigation bar of this website.

I'm not sure if you're responding to me or Guest – if it's to me (if not, disregard), my contention is that "shall not be infringed" would mean that it is prohibiting that power; being that it is a power prohibited by the Constitution, it would qualify as a "supreme law of the land", and so would apply to both the federal and state governments, with the federal government having the duty to enforce the prohibition.

So, the federal government would not be the venue for creating or changing legislation, but it would be the final venue for a challenge to a law that that the citizens of a state thought was un-Constitutional.

It doesn't restrict the states from regulating guns, and it does not give the federal government the authority to regulate guns, but it does prohibit both from infringing upon the right to keep and bear arms (as I read it).

Of course, that then gets into the question of whether any regulation (where you can and can't carry your weapons, etc.) constitutes an infringement.

Again, the Bill of Rights only CLARIFIES the limited nature of the power of the federal government pursuant to the ratification of the US Constitution. The US Constitution (of which the amendments are a part) does NOT limit STATE governmental power (except as specifically enumerated therein). The scope of State power is left to the people of the State to determine in their State Constitution.

The US Constitution was intended as a limit on the federal power and it is drafted this way. That's why it was ratified by the States (acting on behalf of the people) and NOT directly by the people. This was all CAREFULLY thought out by people who were very smart. It's very dangerous to jump in the middle of the scheme and start making changes without FULLY understanding the design.

If the drafters had wanted to limit States in the areas of the first 8 amendments, they knew how to do that since they included various provisions in the US Constitution that specifically limit States' powers. See for example, Article I, section 10. There are other parts of the US Constitution where the powers of the States are discussed and limited and none of those parts include the items listed in the Bill of Rights.

It doesn't matter whether you would have designed it this way or I would have done so or Michael or anyone else. We need to work hard to leave our personal feelings out of the analysis. The question is what the document says. That way, the rules are the same for everyone.

It's very clear the drafters were trying to create as limited a federal government as they could and that they wanted to leave as much as possible to the people and the States formed by the people. This is what the 9th and 10th amendments clarify just in case there is any doubt.

If you say the Bill of Rights apply as against the States even though the US Constitution does NOT say that, then you have expanded the federal power more than is necessarily required by the document itself. Once you do that, you've opened the door for all kinds of intrusions upon the rights of the people, even if your intentions are pure.

I refuse to engage in result-driven analyses. The ends do not justify the means. That's the mistake Lincoln made, for example.

If you believe the Rill of Rights should apply against the States, then you should try to get the US Constitution amended pursuant to Article V.

Article VI – This Constitution, AND the Laws of the United States…shall be the supreme Law of the Land.

Tenth Amendment – The powers not delegated…nor prohibited by it to the states…

Throughout the rest of the Constitution, as you mention, the writers we very careful about what they meant.

They were careful to specify that both the Constitution AND the laws made in pursuance of it are the supreme law of the land –

Laws made in pursuance of the Constitution are binding on all states, so anything prohibited by the Constitution, or protections specified by it, are going to be equally binding on all states, unless the Constitution specifically states the branch that is being restricted.

Article I, Section 8 – The Congress shall have the power to…

Article I, Section 10 – No state shall…

Only the first amendment mentions Congress specifically, the second through the eighth do not specify either the federal or state governments, they simple state that the rights they speak to can not be infringed or are protected in a particular fashion.

Article IV, Section 4 – The United States shall guarantee to every state in this Union a Republican Form of Government…

Second amendment – A well regulated militia, being necessary to the security of a free State…

If the federal government is tasked, by the Constitution, to guarantee a Republican form of government to every state, then it makes no sense that the second through eighth amendments would not apply equally to the states.

That which is necessary to secure the freedom of the people from the federal government is also going to be necessary to secure the freedom of the people from the state governments.

I agree with Monorprise (below) that this is a more subtle point and we should not come to violence over such points but try to educate each other.

So, here goes:

I'm having trouble seeing how a 'republican' form of government means that the states MUST have the exact same protections as are contained in the first 8 amendments.

I thought it was pretty clear that a 'republican' form of government refers to the concept of citizen representation through elected leaders and not the exact specifications of a given state constitution. As long as it's representative, a state constitution would pass muster as being 'republican.' So, you can't have a state dictator for life. Again, I just don't see that the guarantee of a republican form of government is in any way dispositive of the incorporation concept.

Valid laws passed by Congress are supreme. If a state law conflicts, it must fall. No problem there, AS LONG AS THE CONGRESSIONAL LAW IS VALID.

Amendments to the Constitution are part of the Constitution itself and are not 'laws made in pursuance thereof' so that language doesn't mean the Bill of Rights are all binding on the states.

The 'pursuance' language refers to laws passed by Congress AFTER the Constitution is adopted. Today, we would say 'pursuant thereto.'

The structure of the US Constitution is such that it was designed to limit state powers except as specified therein. The 14th amendment doesn't do much except as to the slaves at the time and arguably the 5th amendment 'due process' provision.

We're in agreement on the not coming to violence – if I seem to be coming across that way, I apologize, that was not my intent.

My point is that Article VI says the Constitution AND laws made in pursuance thereof…by making that specification, they are saying that both the Constitution and the laws made in pursuance thereof are the supreme law of the land, i.e., Congress does not have to pass a law that says that suspending the Writ of Habeas Corpus is illegal, because the Constitution already specifies that.

So, my contention is, that if a power is authorized or prohibited by the Constitution, without specifying either the federal government or the state governments, then it must necessarily apply to all; that does not open up the possibility of creative interpretations, because it still requires that a power be authorized or prohibited by the Constitution. If there is no mention of a specific power, then the Constitution does not authorize it to the federal government (so it can't be claimed on behalf of the federal government based on a lack of prohibition) or prohibit it from the states.

As to guaranteeing a republican form of government, the point that I'm trying to make is that the federal government is tasked with guaranteeing that form of government to the several states. If the founders thought that the right to keep and bear arms, the right to be secure in your person, etc., were critical to preventing the federal government from abusing it's power, then they must also have necessarily believed that the same are critical to prevent the states from abusing those powers, because the power of the state governments is just as easily abused as the powers of the federal government.

Therefore, in order for the federal government to guarantee that form of government for the states, it must also have the authority to prevent the state governments from abusing their powers to threaten that form of government.

Basically, it would make no sense to task the federal government with guaranteeing something, but then not give it the power to effect that guarantee.

Therefore, by not specifying the federal or state governments, the Constitution is saying that no government may infringe upon the right to keep and bear arms, to be secure in your person, etc.

Of course, in looking at the first amendment again last night, that opens an interesting question – Only the first amendment (I'm speaking to the first ten at the moment) specifies Congress, implying that there is no prohibition upon state governments…

I had to rush off last night, but I am not using my arguments to justify my reasoning for the purpose of defending gun rights – I am a gun owner, but my focus is not restricted to that issue, it's just one of many issues.

I wholeheartedly agree with Michael's contention that too many people are too quick to run up to the Supreme Court to resolve issues; unfortunately, the federal courts did not do their part by refusing the cases based on no authority to rule on them, rather, they took up the cases, which then set the precedent, and you know the rest.

March 4, 2010 at 5:55 pm

John

It came to mind, going from my argument above, if the federal government is tasked with guaranteeing a republican form of government, to include preventing the state governments from infringing upon the rights of the people, then it would be the federal governments responsibility to challenge an un-Constitutional law passed by a state legistature.

So the people should not be required to challenge the law (although nothing would prevent them from doing so) up through the court system of the state, it would be the federal governments responsibility to challenge, on behalf of the people.

That then brings me to another thought – It does not stand to reason that the federal government cannot prohibit a state from restricting the rights enumerated in amendments two through eight – here's my reasoning.

While it might appear to be logical to you – that has nothing to do with how the founders and ratifiers created a government under the constitution.

The entire constitution – including amendments – was about the federal government except in specific places (such as article 1, section 10) where the states were pointed out.

Since the 1920's, however, the supreme court has had a long, slow process of incorporating the bill of rights against the states. It is rule by judicial fiat, not the original intention here either.

while some believe this to be the right way for our government to be set up, imposing one's personal beliefs or opinions on history is not the stuff that the constitution is supposed to be made of. A constitutional amendment to that effect would be required.

On top of it, the important question to ask is this – if the federal government protects us from the states, who is going to swoop in and save us from the federal government – because it is seriously failing at that job.

Devolving closer to home, and decentralizing policy is a far better way to advance your beliefs.

March 4, 2010 at 11:00 am

John

(This is the end of my reply below)
Here’s a hypothetical situation – Say the legislature of the state of California voted to create a communist state – The Peoples Democratic Republic of California – and did the standard communist things – eliminated all private ownership of property, outlawed religion, required people to attend “re-training” and direct the police forces in the state to run surveillance on anyone suspected of opposing the government and conduct searches of all homes and businesses for weapons and “evidence” of opposition to the government.

In reponse, the people of the state rise up against the government of the DPRC and demand the return to a republican form of government, and threaten violence to do so. In response, the People’s Assembly (formerly the legislature) bans the possession of weapons (if it hadn’t already gotten around to it), and they also suspend all jury trials and hold show trials of people suspected of resistance, charging them with treason and sentencing them to death.

By your contention, even though the federal government is tasked with guaranteeing a republican form of government, it can’t do anything to uphold that guarantee in this hypothetical situation, since the Constitution does not specify how the federal government is supposed to do so.

Secondly, the people rising up against the government of the state would be classified as an insurrection – so is the federal government now obligated to suppress the will of the people?
If the state appealed to the federal government to call up the militia to suppress the insurrection, would the federal government be obligated to do so?

Your contention would seem to answer in favor of the state – although the federal government could refuse to suppress the insurrection, it could due nothing to check the power of the state government.

The only option left at that point would be for the people of California to appeal to the federal government for aid to restore the republican form of government, at which point the federal government would then, for all intents and purposes, have to declare war on a member of the union.

1. A republican form of government does not imply that it will have a high state of freedom. it does not imply conservative values or liberal ones. it implies the structure of the government, which would be to ensure representation, for example. If a state violates that system, then yes, the federal government is supposed to step in.

2. Much of your hypothetical – while possible – is already outlawed by most (if not all) state constitutions. so it would take massive popular support to enact such proposals.

3. You forget to mention the most important check on power – competition. As California continues to go down this path (I know it does, I live here!), less and less people are willing to put up with the high cost of living in this state – and neighboring states with greater freedoms in certain areas, like Arizona and Nevada, are experiencing major population growth. The more oppressive a state gets, the lower its tax base will end up being and as more states like CA go fully bankrupt, the end result is that they will have no choice but to expand freedom, rather than limit it.

I am of course fully open to the substituting of the word "Federalism" as a euphemism for “State's Rights.” At this point it really doesn't matter, there is no significant difference. It if helps one more person to understand exactly what it is we are after and the merits of that goal it is perhaps helpful.

"Massachusetts’s constitution was framed under the concept and was a solid example of success."

I am having trouble understanding why they would believe that the Massachusetts’s constitution could seriously be taken as a solid example of success?

The march of history is has always been towards greater and greater government, and weaker and weaker individual liberty because it is the nature of politicians to only increase their own power and control, but to do so unrelentingly.

I am not sure I can accept the explanation that the articles of confederation were a failure. I think the State of Massachusetts was a failure for over taxing their farmers to pay for the war dept, although I suspect there was more to it then that.

But such a dispute is not important right now, as whether or not we agree as to where the decentralization must finally settle, is not so important as the fact that we DO agree that it must start and move from now.

The consequences of the otherwise inevitable collapse into total tyranny are simply unacceptable.

I think if a state departed from the union that that state government would become just as bad as any other government. The only reason why state governments don't pass draconian laws that the federal government does is that the federal govt. puts a check on them but shouldn't states also be able to put a check on the federal government? This is where I see the current problem with the federal government. There is no check on it.

What you're talking about is the problem created by the passage of the seventeenth amendment.

Originally, by selecting the senators, the legislatures had a direct voice in Congress that was there to protect the interests of the states and could counter attempts to over-reach by the House of Representatives, the President or the Supreme Court.

By changing the selection to a popular vote (in the name of "democracy"), the states lost any control over the Congress.

(Had to continue here) When you add that to ever more creative interpretations of the Constitution by the Supreme Court, usually in favor of the federal government, you now have a Congress that passes legislation, and a Supreme Court that makes sure that the Constitution says whatever it needs to say to give Congress the power to legislate on the subject.

After that, the states have no legal recourse, because the Constitution now says the federal government has that power.

The founders (wisely) took advantage of the jealousy with which those in power (normally) protect their power;
Any attempt by one body to take more power would infringe upon the powers of another body and the body having its power infringed upon would act to protect its power by countering the offending body.

Great post, hopefully it will get more people thinking on the correct track. I do tend to lean towards the power concept concerning the states primarily because a state( not being a person ) cannot have rights.

In the beginning, the states had sufficient power to keep the general government in check. That, however started to erode when the states ceeded the power to the general government when Washington ( at the urging of Hamilton ) to form the first Central bank. It has been down hill since then with regulation of personnal property, taxation, education, commerce ( both intra and inter ) state.

My question is, how do we the people get this issue turned around? Is there something specific the states need to do to reverse the delegation of power to the general government?

You got me looking into the Constitutional debates, and in the short time I had to look through, I see where you’re coming from; there is no mention of restricting the states powers, only the federal governments.

The contention was that the states already had the requisite protections through their constitutions.

It does then make me curious as to how the federal government is supposed to guarantee a republican form of government, as no legal mechanisms are provided for it.

That would seem to indictate that the federal government would have only the threat of force to do so.

As I mentioned before, there is nothing that makes a state any less prone to abuse than the federal government, and nothing to prevent a state government from suspending or eliminating the protections in its constitution.

The States are MUCH closer to the people, therefore the people have a much better chance of knowling their reps, taking action and stopping abuses. These factors make them much less prone to abuses.
To a certain degree, if people are to lazy to defend their rights at the states level, they get what they deserve.

Ultimately, regardless of anything written anywhere else, all that matters is what's written in the declaration of independence. If any form of government is no longer serving properly, the _people_ have a right and a duty to change it. Arguing about details like what technical section of whatever document says who can or can't do a given thing is eventually pointless when our "leaders" are alternately twisting and ignoring the same documents meant to control them in the first place. The "good guys" can not expect to prevail if they play by a set of rules while the "bad guys" alternately change the rules, or ignore the rules completely at their whim. If you take the time to read the Anti-Federalist papers, you will see that it was well known from the beginning that the seeds of the destruction of the nation were sown in the constitution itself through wording that created loopholes which "banker owned" power hungry federalists like Hamilton always intended to use in order to circumvent the true intent of the document. Nothing that has happened since should be a surprise. It's unfortunate that Jefferson was in France during the constitutional debates. I think he could have done much to counter the influence of Hamilton. Go to the University of Virginia website for many quotes by Jefferson that are very enlightening about problems with the system.

The bottom line though, is that our system is out of control, and we will be _extremely_ lucky if downright force is not eventually required to correct it. Just as it was required in the 1770's, and was required again in the 1860's (though the wrong side won in that case, regardless of the catalyst being less than desirable… that's for another discussion though). We should do everything within reason to avoid that, of course. Nobody wants that. The founding fathers did not want that. Unfortunately though, history always eventually repeats itself, because despots tend not to relinquish power freely, and good people tend to avoid dealing with unsavory problems until it's too late.

Go here and read both the federalist and anti-federalist papers, as well as other period documents. It's well worth your time. http://www.constitution.org/

Also, another comment… I think the article here on the tenth amendment center website which compares Jefferson and Lincoln is worth taking time to read. It makes good points.

Where there is power, there is the right to protect and use that power. States in fact have rights–rights based upon those rights of the people. The rights of a state exist so long as the people of that state do not take them away. This is confirmed by the Law of Nations discussions and expositions of our great forefathers.

This is really a silly article. Jefferson himself used the term "state rights," and I don't think he was an idiot who didn't understand that "states don't have rights," etc. And no matter what term we use for decentralization, the morons will always associate it with slavery. It is our job to respond to this lunacy with an overwhelming barrage of true history, and defeat them intellectually — on blogs, in the comment section of articles, etc.

State's Rights IS the exercise of the individual state's power. Government is to be a observer of the state exercising their power, not the all powerful director of the states. Arizona is the latest example of a state exercising it rights to govern itself. That is what State's Rights are, the exercise of the power of a state to govern itself within the confines of the Constitutional structure which bonds the UNION OF INDIVIDUAL STATES together as one nation. Uncontrolled FEDERALISM can be a growing, evolving menace to individual liberties. See article by Paul Klinger for a short study on the effects of Federalism. http://www.ask.com/bar?q=federalism&page=1&am…